43 Kan. 572 | Kan. | 1890
The opinion of the court was delivered by
E. J. Stewart is the owner of lots 1 and 2 in block 46, in the city of Anthony. On the 9th day of November, 1885, he entered into a written contract with J. T. Harris, by which it was agreed that Harris should erect a two-story frame building on the lots for $1,500. Harris was to furnish all the materials and labor for the building. To secure the faithful performance of the written contract, Harris executed to Stewart a written undertaking with two sureties in the sum of $2,000. G. B. Shaw & Co. furnished lumber, under a contract with J. T. Harris, which was actually used
The trial court sustained a demurrer to the evidence of the plaintiffs, interposed by Stewart, upon the ground that the liens of the plaintiffs were prematurely filed. The question presented by the record is, where a contractor refuses to proceed with his contract and abandons a building before its completion, that he has contracted with the owner to build and complete, can a sub-contractor, who has furnished materials under a sub-contract with the contractor, which are used in the building, treat the building as completed at the time the contractor abandoned it, and file his lieu for materials without further delay ? It is contended in support of the ruling of the trial court, that the right of the plaintiffs is purely a statutory right; that the remedy depends upon the existence of the right and that the right of the plaintiffs to file their liens depended upon the existence of certain conditions precedent, among others, the completion of the building and the filing of the statutory statement within sixty days after its completion. (Comp. Laws of 1885, ch. 80, §§ 631, 632.) If there had been no permanent abandonment of the construction of the building by the contractor, we would be compelled to affirm the ruling of the trial court. (Davis v. Bullard, 32 Kas. 234; Seaton v. Chamberlain, 32 id. 239.) In the Davis case it was said:
“It is our view, however, that as between the owner of the property and the contractor and sub-contractor, the contractor .and the sub-contractor should be considered as substantially •one and the same person with reference to the completion of*577 the building, and therefore that the building should be considered as completed when and when only the contractor has completed his part thereof. No privity of contract exists between the owner of the building and the sub-contractor; but the sub-contractor’s rights are based simply and solely upon his contract made with the contractor. The contractor, and not the owner of the building, is the sub-contractor’s debtor, and the sub-contractor has no right to claim that the building has been completed until the contractor under whom he claims has such right.”
But upon the facts of this case, the ruling of the trial court that the liens of the plaintiffs were prematurely filed, because the building was not fully completed, cannot be sustained. Such a construction of the statute is too technical and too harsh against persons furnishing materials as sub-contractors to be used in buildings. It is said in Eneeland on Mechanics’ Liens, §65, that —
“There are circumstances under which performance by the contractor is excused, and he may maintain a lien under a quantum meruit for the work done, or under the contract for the proportional amount of performance rendered. The claimant will be entitled to the benefit of a lien if the failure was caused either by the consent or fault of the owner.”
“If, however, the contractor should abandon the work for any cause before completing the building under his contract, it is possible, and even probable, that the sub-contractor may then, if not inequitable, consider the building as completed, and obtain liens thereon within four months thereafter by complying with the provisions of §§ 631 and 632 of the civil code. But so long as the contractor has not completed the work under his contract, but is still at work on the building under his contract, the building cannot be considered as having been completed, either as to the contractor or any subcontractor.”
In Henderson v. Sturgis, 1 Daly (N. Y.), 336, it was decided that —
“Where a sub-contractor is prevented from performing the*579 whole of his contract with the contractor by reason of the failure of the latter, and an assignment by him of the contract for the benefit of his creditors, held, that he may acquire and enforce a lien for the value of his labor and materials performed and furnished up to the time when he was prevented.”
Jones on Liens, vol. 2, §1438, thus states the law:
“The owner’s or contractor’s abandonment of the work upon a building is to be deemed a completion of it for the purpose of the filing of mechanics’ liens by sub-contractors, material-men, and laborers. It would be inequitable and unreasonable, and contrary to the spirit of the law, to hold that parties are absolutely barred of all rights to the lien law where the work is prematurely stopped or abandoned without fault of such parties. Such a construction would place material-men and laborers at the mercy of the dishonesty, fickleness, or misfortunes of the owner or contractor.”
The judgment of the district court will be reversed, and the cause remanded for further proceedings, in accordance with the views herein expressed.